Federal Judge Orders Gender Reassignment Surgery for Inmate

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BY ARTHUR S. LEONARD | For the first time, a federal court has ordered a state prison system to provide gender reassignment surgery for a transgender inmate.

Chief Judge Mark Wolf of the US District Court for Massachusetts issued a September 4 order directing the state Department of Corrections (DOC) to “take forthwith all of the actions reasonably necessary to provide [Michelle] Kosilek sex reassignment surgery as promptly as possible.”

Wolf found that denial of the surgery violated Kosilek’s right to be free of “cruel and unusual punishment” under the Constitution’s Eighth Amendment.

“Kosilek is serving a life sentence, without possibility of parole, for murdering his wife,” wrote Wolf. “Kosilek suffers from a gender identity disorder, which is recognized as a major mental illness by the medical community and by the courts. Kosilek is, therefore, a transsexual –– a man who truly believes that he is a female cruelly trapped in a male body. This belief has caused Kosilek to suffer intense mental anguish. This anguish has caused Kosilek to attempt to castrate himself and to attempt twice to kill himself while incarcerated, once while he was taking the antidepressant Prozac.”

The Supreme Court has ruled that the Eighth Amendment requires that prison authorities not exhibit “deliberate indifference” to inmates’ serious medical conditions and that they provide adequate care as defined by accepted professional standards.

Some cases of gender identity disorder can be adequately treated through psychological counseling, while others require hormone therapy in support of body modifications to conform to an individual’s gender identity.

“There are, however, some cases in which sex reassignment surgery is medically necessary and appropriate,” wrote Wolf, observing that in this case the Massachusetts DOC medical staff agrees that Kosilek needs this treatment.

According to Wolf’s opinion, a series of DOC commissioners stubbornly resisted medical recommendations, as they had done regarding hormone therapy in this and other cases.

“Such cases have recently become more common in Massachusetts because the DOC has repeatedly denied transsexual prisoners prescribed treatment for reasons that the courts have found to be improper,” Wolf wrote.

Among the ploys used to avoid providing gender reassignment surgery, past DOC commissioners have discharged doctors who prescribed it and hired new doctors categorically opposed to it. Commissioners have also argued that prison security concerns justified refusal to provide hormone therapy –– including at an earlier stage of Kosilek’s lawsuit –– but Wolf found the evidence belies that argument. After Wolf ordered that Kosilek be given hormone therapy and allowed to adopt feminine dress and grooming, she continued to live unmolested, despite continuing to be detained in an all-male prison.

Wolf dismissed DOC’s argument that Kosilek might seek to escape while being transported to a hospital for the surgery or during the hospital stay. Instead, the judge focused on what appears to be the true motivation for the stonewalling –– fear of political and media criticism, which has already greeted this case (Editor’s note: since this ruling from Republican US Senator Scott Brown and his Democratic opponent, Elizabeth Warren). Only valid law enforcement concerns can be used to deny treatment; Wolf rejected concern over public relations as an unconstitutional basis for withholding needed medical care. Questions of expense are also out of bounds, the court found.

“A prison official acts with deliberate indifference and violates the Eighth Amendment if, knowing of a real risk of serious harm, she denies adequate treatment for a serious medical need for a reason that is not rooted in the duties to manage a prison safely and to provide the basic necessities of life in a civilized society for the prisoners in her custody,” Wolf wrote.

This decision is the first to order gender reassignment surgery for a prisoner, but it is not without supporting precedent. In 2011, the US Court of Appeals for the Seventh Circuit found an Eighth Amendment violation in a Wisconsin statute prohibiting the expenditure of state funds for any hormone therapy or reassignment surgery for transgender inmates. In that case, however, the inmate who sued sought only hormone therapy.

Wolf also cited a recent decision by the US Tax Court, which reversed long-standing policy of the Internal Revenue Service and allowed a transgender taxpayer to deduct sex reassignment expenses as legitimate medical expenses. Several federal courts, including some courts of appeal, have ruled that gender identity disorder is a serious medical condition, and several have upheld hormone therapy orders. Wolf’s ruling logically follows from those precedents.